Examination of Witnesses (Questions 1
- 19)
WEDNESDAY 14 NOVEMBER 2007
Professor Jo Shaw
Q1 Chairman:
Good afternoon, Professor Shaw. I am going to start by asking
you to identify yourself. We know obviously that you are from
Edinburgh University and that you have come here as an expert
in the field, and I believe you want to make a brief opening statement,
so you are on air and we look forward to hearing what you have
to say.
Professor Shaw: Thank you very much. I am very
grateful to the Committee for the opportunity to come down and
talk to you today and I hope we can have an interesting discussion.
My name is Jo Shaw and I hold the Salvesen Chair at the University
of Edinburgh in the School of Law and I am one of the co-directors
of the Europa Institute in that University. We are going to be
talking about freedom, security and justice in the context of
the Reform Treaty, and I am sure there is a great deal of expertise
about that already around this table. The one point I would make
as a preliminary is that in terms of substantive changes to the
existing EC and EU Treaties—albeit that the former will
be renamed after the Reform Treaty comes into force—freedom,
security and justice effectively provides the most substantial
substantive and procedural changes. There are some very important
shifts in terms of the decision-making process, not just moving
from unanimity to qualified majority voting but moving from very
much an emphasis on an inter-governmental process, which is still
present in the Third Pillar, right through to qualified majority
voting and co-decision with the European Parliament. So one should
not in any sense underestimate the importance of these changes.
In terms of substantive powers, we can look at those in more detail
in due course. I think that these are sharpened up and perhaps
in some areas broadened in scope in some ways, and I think the
sharpening up process is probably an advantage in terms of making
it clearer where the EU will have competence in relation to freedom,
security and justice issues and where it will not.
Q2 Chairman:
Thank you very much. In that answer you have touched on the collapse
of the First and Second Pillars. What were the considerations
or problems which have motivated these changes?
Professor Shaw: I think it is helpful to think
back a little and to think about the canvassing of the case for
reform that was undertaken in the context of the European Convention
on the Future of Europe. Working Group 10, which was chaired by
former Irish Prime Minister John Bruton, looked at the topic of
freedom, security and justice and it has identified freedom, security
and justice as areas that really matter, where delivery can make
a difference in relation to what citizens' expectations are and
also as to whether or not one ends up with this disastrous expectations/capability
gap. The primary objective of the report was to propose a legal
scenario under which all of the matters related to freedom, security
and justice would be brought under a single legal framework, removing
such problems as uncertainties about the legal basis, which were
very much pointed up by the Council Legal Service, which was a
strong adviser to that particular working group, and also the
necessity for sometimes having two instruments to cover different
parts of the same matter. Furthermore, the absence of qualified
majority voting in the field was broadly seen by many as a major
obstacle to effective decision-making. That of course had already
been recognised when the Area of Freedom, Security and Justice
was reformed for the first time in the Treaty of Amsterdam when
substantive matters were incorporated into the EC Treaty—"communitarised"
to use the jargon—and then with a series of transitional
provisions, in most cases, moved with few exceptions into the
arena of qualified majority voting and co-decision with the European
Parliament. In common with the other areas that the Convention
worked with, of course, national parliamentary input was also
a leitmotif for the Working Group on Freedom, Security and Justice.
The proposal was to fully communitarise freedom, security and
justice whilst preserving the opt-outs for the UK, Ireland and
Denmark. These came under some fire in some of the documentation
that came before the Convention, notably in the Commission's Penelope
Report, but the political reality was that they were always going
to be retained, and of course they are retained and indeed enlarged,
as we have seen from the June 2007 IGC mandate onwards, to reflect
political realities. There will be a fundamental shift in relation
to freedom, security and justice decision-making. It will affect
the UK, but the UK will obviously have some control and some possibility,
as we know—likelihood perhaps in some areas—to opt
out from the effects of that shift.
Q3 Chairman:
Can we just focus then on the opt-outs which, as you say, have
been applied and I think you also said slightly extended.
Professor Shaw: Yes.
Q4 Chairman:
And perhaps you could help also as to how they operate generally
in relation to the areas of freedom, security and justice which
are covered now by the proposed new Article 69 onwards. That is
border checks, asylum, immigration, civil co-operation, criminal
co-operation and the police. Could you then touch on the matter
of opt-outs in relation to the Protocol on the Schengen acquis
and how they relate. If you could just start with the first general
point about freedom, security and justice.
Professor Shaw: In order to understand what
they will be, we have to understand what they already are. This
is a difficult moment to contemplate that because this is precisely
a moment of uncertainty in relation to the scope of those opt-in
possibilities, because the UK, having sought to opt in to a couple
of Schengen development measures, has then found itself unable
to do so, and has challenged that refusal before the Court of
Justice in two cases. You have to bear in mind—and we can
look at the detail of that later—that this is precisely
quite a difficult moment because nobody is wholly certain what
the effects of the opt-out procedures are, not in the sense of
the extent to which the UK can opt out, but in the sense of the
extent to which it may be free to opt back in, or the extent to
which it may be locked out from opting back in, because this falls
within the area of Schengen, and we are uncertain what it means
to be "developing Schengen".
Q5 Chairman:
That is a problem which only applies in relation to the area of
Schengen though?
Professor Shaw: It does, but the Reform Treaty,
opt-out does potentially cover some measures that the UK wants
to opt in to otherwise it would not be looking at that. There
are a number of Third Pillar areas as well where the UK may be
locked out from opting in, in the future. For example, the UK
has not been locked out from the Treaty of Prüm implementing
measures, but it could have been locked out of those had the other
Member States decided they wanted to do that. Do you want me to
talk about the effects of the opt-outs?
Lord Burnett: Could we have rather more
detail about that because it is interesting to me?
Q6 Chairman:
I was going to say can we just break it down a little. In relation
to civil matters there is no such problem. In relation to some
criminal matters might there be?
Professor Shaw: About being locked out?
Q7 Chairman:
In principle we can decide whether or not to opt in. In relation
to criminal matters, is there a problem?
Professor Shaw: When the Schengen Acquis was
brought into the framework of the European Union, it was partially
allocated to the First Pillar and partially allocated to the Third
Pillar, with the default position that it was allocated to the
Third Pillar. That means that there is a range of areas which
are currently covered by the UK's Schengen opt-out but which are
not currently covered by the UK's Title IV opt-out, but will be
covered in the same way. What I am saying is that effectively
any problem of overlap, underlap or conflict between the Schengen
Acquis opt-out or opt-in and the Title IV opt-out or opt-in will
then be magnified into the Third Pillar as the Third Pillar comes
in to the general opt-out as well. That problem is not going to
go away, in fact it is going to be extended in scope, because
of those measures coming in to the first pillar. At the moment
there is no interplay between the two because the UK is putatively
in all Third Pillar measures, but of course they are decided by
unanimity. That is, unless it is a Schengen development measure,
in which case it can only opt in if the other Member States agree.
Obviously that is a relatively unusual development but there are
quite a lot of areas relating to the management of data, relating
to hot pursuit, and certain aspects of criminal process which
were effectively covered by the Schengen Acquis which, once you
move to a single title rather than two separate ones, means that
that interplay between the two opt-outs comes into play in relation
to Third Pillar measures, just in the same way that it is now
proving to be a bit of a problem in relation to First Pillar measures.
Q8 Lord Lester of Herne Hill:
Just in order to get my mind focused, could you give one example?
Would the Schengen Information System be a good example of what
you are describing or not, just to make something concrete so
we can see how it is going to play? A practical example would
be helpful.
Professor Shaw: Yes. I think the Treaty of Prüm
is a good example of that.
Q9 Lord Lester of Herne Hill:
The what, sorry?
Professor Shaw: The Treaty of Prüm.
Q10 Chairman:
It is data, is it not?
Professor Shaw: Well, yes, it is looking at
each other's DNA databases and that type of thing to see whether
or not there are hits. This might have been an example, although
in fact the UK has participated in it fully and it has not been
locked out. Some of these areas which are potentially—
Q11 Lord Burnett:
Could I just interrupt, should we be locked out or is it voluntary
that we are allowed to be locked into this DNA data?
Professor Shaw: No, we cannot be locked into
it.
Q12 Lord Burnett:
Not locked into it; allowed into it, I mean.
Professor Shaw: In what sense do you mean allowed
into it?
Lord Burnett: Why are we allowed to go
into it if we are out of it? I am just trying to pierce it, if
you can make it clear to me and the Committee.
Q13 Lord Wright of Richmond:
Lord Chairman, I think I can offer an example which my previous
EU Sub-Committee has just been examining and that is Frontex.
Professor Shaw: Yes.
Q14 Lord Wright of Richmond:
We are in fact not full members of Frontex because we cannot be
and we do not have a vote on the management board, but we actually
have a member on the management board and we take part in Frontex
operations to a greater extent than many of the Schengen countries.
Professor Shaw: And we would like to have participated
in the Regulation that established Frontex. But those are both
First Pillar measures already so in that sense that tension is
already there. I think what the Committee is asking me about is
whether or not that tension is going to be magnified or developed
and in what areas might it be magnified and developed as we move
into having not two separate Titles under two separate Treaties
but a single Title, albeit with gradations of different types
of decision-making and different involvements of the UK. I am
trying to make a very simple point and probably making a meal
of it. Under the existing Title IV provisions of the EC Treaty
there is a tension that is currently before the Court of Justice
between the two Protocols—between the Schengen Protocol
and the Title IV Protocol—so one that allows the UK to opt
in if it is allowed to opt in and the other one which allows it
putatively to opt out, and assumes it will opt out unless it chooses
to opt in again, and it cannot be prevented from opting in.
Q15 Chairman:
Can I ask if the United Kingdom position prevailed in those two
cases before the European Court, contrary to the Advocate General's
opinions, would the problem disappear?
Professor Shaw: Would the problem disappear?
Well, it will create more margin of manoeuvre for the UK Government.
Q16 Chairman:
Because the United Kingdom stance there is that under Article
5 of the Schengen Protocol and/or under Title IV opt-in we have
a right to opt in on anything except basic Schengen Acquis, and
if that prevailed presumably there would not be nearly as great
a problem?
Professor Shaw: That is why I said this is a
very difficult time precisely to ask that question.
Q17 Chairman:
You are assuming we are going to lose it?
Professor Shaw: I am not assuming we are going
to lose it but I think we have to work with that being more than
a 50 per cent probability, bearing in mind the fact that the Court
more often than not follows the Advocate General. Not that the
Advocate General's analysis is particularly convincing in this
area, but there is not a huge basis on which to build our legal
arguments in this area.
Q18 Chairman:
And assuming that we do lose it and the Court follows the Advocate
General, then the problem is one of the inconvenience of not being
able to opt in rather than a problem of being forced into things
that we do not wish to do?
Professor Shaw: I am absolutely not suggesting
that the UK in any circumstances in these areas is likely to be
locked into things that it does not want to be involved in. Even
with the qualified majority voting stepping in, we have seen with
the civil justice co-operation that there appears to be more of
a tendency for the UK to opt out at the very beginning, rather
than opting in, where qualified majority voting has become the
baseline, because there is a little bit more of a danger that
a political process might develop and a political set of circumstances
might develop in which it then might become difficult for the
UK to step out. It may certainly become very politically embarrassing
for the UK to step out, and I think that a judgment has been made
in Government circles to try to avoid that as far as possible.
Wherever there is an opt-in, and the UK has opted in to start
with, but then for one reason or another a decision cannot be
made, then the possibility for the other Member States to assume
that they can proceed on their own is built into the Protocol,
and this would be the case. Where that operates with majority
voting and where it operates with unanimous voting are two very
different political processes where very different judgments have
to be made by those who are involved in the negotiating. What
little bit of evidence we have—and it is just a tiny bit
of evidence which stems from civil justice co-operation—seems
to be that the cautious approach is not to get involved at the
very beginning. Unless the UK is absolutely convinced that a measure
is in the national interest, then the Government is probably going
to opt out from the very beginning, but that is a different type
of problem.
Q19 Lord Lester of Herne Hill:
My Lord Chairman said that it is a matter of inconvenience. Can
you think of an example where it is not just a matter of inconvenience
that we would not have a right to opt in but there is some important
public interest at stake beyond mere inconvenience?
Professor Shaw: Presumably DNA databases would
be such a case.
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